Sgt. Alfred Kajawa V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

The Appellant herein was arraigned before the Lagos State High Court on the 31st January, 2005 charged with murder of one Mohammed Heshimu under Section 319(1) of the Criminal Code of Lagos State. In order to prove its case, the prosecution called two witnesses and tendered the extra-judicial statement of the appellant, the post mortem report and the picture of the corpse of the deceased which were admitted in evidence and marked Exhibits A, B and C respectively. On the 2nd of April, 2005 Learned Counsel for the Respondent did inform the Court that the Baretta Riffle used by the Appellant on the day of the incident was with a ballistician at C.I.D. Alagbon close for examination and report. Learned Counsel further informed the Court that the ballistic report was not available. At this point, Learned Counsel applied to recall PW1 to tender the rifle at the next date of adjournment.

On the 22nd June, 2006, Learned Counsel for the Respondent gave notice of the prosecution’s desire to call PW1 through whom the gun will be tendered in the following words: –

“We are unable to produce the PW1 who we want to

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recall to come and tender the gun used in killing the deceased. We are not objecting to the Defendant opening their case.”

Learned Counsel then made a no case submission on behalf of the Appellant which was overruled on the 28th December, 2006. Thereafter the Appellant testified in his defence and called no further witness. At the close of the Appellant’s case, Learned Counsel for the Respondent reminded the Court about his wish to recall PW1 to tender the ballistic report and thereafter applied to reopen the prosecution’s case to accommodate the evidence in respect of the ballistician’s report.

Learned Counsel for the Appellant raised objection to the application to reopen the prosecution’s case. After hearing both parties on the application to reopen the prosecution’s case, the learned trial Judge, Nwako J., in a reserved and considered ruling granted the application in which he allowed the prosecution to call the ballistician as witness in order to tender in evidence the gun and the ballistician report. It is against this interlocutory ruling that the appellant appealed to the Court of appeal. In a reserved and considered

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judgment delivered on the 12th June, 2012, the lower Court, Coram Akaahs, Okoro and Bage JJCA (as they all were) found the appeal lacking in merit and dismissed same.

The Appellant is dissatisfied with the decision of the lower Court. Being aggrieved, he has brought this appeal. His notice of appeal at pages 346 – 356 of the printed record of this appeal contains six grounds of appeal. Parties filed and exchanged briefs of argument. The Amended Appellant’s brief of argument, settled by Chukwuka Ikwuazom Esq., of Counsel to the Appellant was filed on the 19th December 2016, but deemed properly filed and served on the 14th December 2017. At page 6 paragraph 3.00 of the said brief of argument, learned Appellant’s Counsel formulated one issue only for determination of this appeal as follows: –

“Whether in the circumstances of this case, the lower Court was correct in affirming the decision of the Trial Court granting leave to the prosecution to call a new witness who will adduce fresh evidence after the close of the case for the defence.”

Mr. Adeniji Kazeem, Learned Attorney General of Lagos State, who settled the Respondent’s brief of

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argument filed on the 22nd July, 2016, but deemed filed on the 29th August, 2016 and further deemed on the 14th February, 2017 at pages 4 – 5 of the said brief formulated two issues for determination of this appeal. The two issues are reproduced hereunder as follows: –

i). Whether in the circumstances of this case, the lower Court was correct in law when it affirmed the Ruling of the Trial Court, granting leave to the Respondent to re-open its case to call a witness at the close of the case for the Appellant.

ii). Whether the lower Court and the Trial Court ought to have relied on the provisions of Section 289 of the Criminal Procedure Law 2003 rather than Section 200 of the Criminal Procedure Law 2003 in coming to a decision in this case.

The Appellant in this appeal is the person aggrieved by the decision of the lower Court. It is he that has the burden to state the areas and the circumstances in which he is aggrieved. The duty of the Respondent is to reply to the queries raised by the appellant. He has no right to go outside the areas of grievances since he did not file a cross-appeal or a Respondent’s notice of intention to rely on other areas in urging the Court to

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in urging the Court to affirm the decision of the lower Court. For the Respondent to distill more issues than the Appellant is an anomaly which portrays him as crying more than the bereaved. I will therefore adopt the sole issue formulated by the Appellant’s Learned Counsel in determining this appeal.

In arguing the sole issue for determination, Learned Counsel for the Appellant urged this Court to overturn and/or set aside the decision of the Court of Appeal on the following reasons: –

1. The learned trial Court in arriving at its decision applied Section 200 of the Criminal Procedure Law rather than Section 289 of the same law. Had the Trial Court applied the provisions of Section 289 of the Criminal Procedure Law to the Respondent’s application to call new evidence, it would have inevitably concluded that the defence had not introduced any evidence which the prosecution could not reasonably foreseen and dismissed the Respondent’s application. The Court of Appeal therefore erred in upholding the decision of the Trial Court.
2. The Learned Trial Court in applying the said Section 200 of the CPL failed to take into consideration the principles laid down by the Supreme Court in a plethora of cases.

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Had the trial Court taken these principles into account, it would have dismissed the Respondent’s application as granting it would inevitably strengthen the case of the prosecution and weaken the defence of the Appellant. Again, the Court of Appeal erred in not setting aside the decision of the Trial Court on this ground.

3. The Learned trial Court’s decision allowing the prosecution to call new evidence and the Court of Appeal’s judgment upholding it are contrary to the interest of justice and will seriously prejudice the Appellant.

In his reply, the Learned Attorney General of Lagos State submitted that the Appellant has not shown sufficient reasons to warrant setting aside the decision of the lower Court and that of the trial Court. Learned Attorney General urged this Court to hold that the appeal lacks merit and to dismiss same on the following grounds: –

1. The order of the Trial Court allowing the Respondent’s application to re-open its case to call a witness is not based upon the ex-improviso principle in Section 289 of the CPL 2003 but is based under Section 200 of the CPL 2003.

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The Trial Court was right in exercising its power to grant an order allowing the Respondent to reopen its case to call the Ballistician under Section 200 of the CPL 2003.

3. The lower Court was right to have affirmed the decision of the Trial Court to exercise its power to grant an order allowing the Respondent to reopen its case and call the Ballistician.
4. The decision was made in the interest of justice to ensure that all material facts are placed before the Court and the Appellant could not have been prejudiced in any way as he would be able to cross-examine the said witness.Now Section 200 of the Criminal Procedure Law of Lagos State, 2003, provides as follows: –

“The Court at any stage of any trial, inquiry or other proceedings under this Law may call any person as a witness or recall and re-examine any person already examined and the Court shall examine or recall and re-examine any such person if his evidence appears to the Court to be essential to the just decision of the case.”

Section 289 of the Criminal Procedure Law of Lagos State, which the Appellant also made reference to provides as follows:

“If the defendant adduces in his evidence new

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matter which the complainant could not foresee, the complainant may with the leave of Court, adduce evidence to rebut such first mentioned, evidence.”

I wish to state straight away that the application by the learned counsel for the Respondent to recall PW1 or call the Ballistician through whom the gun which was allegedly used in killing the deceased would be tendered was not made as a result of any new evidence adduced by the Appellant in his defence. Learned Counsel for the Respondent had put the Court on notice about his intention to recall PW1 before the prosecution’s case was closed. When it became impossible to procure the presence of PW1, Learned Counsel did apply to call the ballistician that inspected the gun. The procedure adopted by the trial Court does not fall within Section 289 of the CPL where the recall of a witness is subject to new evidence by the defence. I am of the firm view that the trial Court was right when it acted under Section 200 of the CPL to reopen the prosecution’s case at the stage it did. By the provision of Section 200 of the CPL, a Court is empowered to either call a fresh witness or recall a witness that has

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already given evidence where the pieces of evidence to be given are essential for the just determination of the case. In Ayub-Khan v. State (1991) 2 NWLR (Pt. 172) 127 which was cited and relied upon by both parties, this Court held: -“The trial Judge has always had the power suo motu in a criminal proceeding without the consent of the parties to summon a witness, or of recalling a witness to testify even at the close of the case and before judgment if in his opinion this course is necessary in the interest of justice. The Appeal Court will not interfere with the exercise of such discretion unless it appears that an injustice has thereby resulted.”

The words of Section 200 of the CPL appear to have limited and circumscribed the exercise of the power to recall witnesses after the close of parties cases to the Court alone. However the Court before which a case lies has absolute discretion to raise new issues and then invite parties for further address in order to do justice or act on any application by any of the parties where a grant of such application will not occasion a miscarriage of justice. The gun that is sought to be introduced

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in evidence was in possession of the appellant at the time the offence for which the Appellant is standing trial was committed. The Appellant’s insistence that the gun should not be introduced in evidence after the closure of the parties case is an argument that seeks to introduce technicality into a criminal case in order to blur the vision of the Court. This is unacceptable as it is no longer the practice of this Court to rely on technicality as opposed to doing substantial justice.

In Psychiatric Hospital Management Board v. Edosa (2001) 5 NWLR (Pt.707) 612 at 623 paragraph A, Wali JSC said: –

“The Courts are now more concerned with doing substantial justice than changing to procedural technicalities and therefore concerns themselves with the substance and not the form. This apart, the allegation against the respondent involved commission of crime which raised the onus to that of proof beyond reasonable doubt on the Appellant.”

The lower court in its judgment said: –

“As stated in their brief, the Appellant’s defence to the charge is that there was an “accidental discharge” while he was struggling with the deceased. My view

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is that apart from being in the interest of justice to tender the gun used in the alleged commission of the offence, it is in the greater interest of the Appellant to call the ballistician who is an expert in the mechanics and technical data of a gun to give evidence in Court. This will certainly assist the Court in deciding one way or the other as to how the gun exploded and killed the deceased. Was it deliberately fired OR, was it an “accidental discharged” as alleged by the Appellant This piece of evidence is, in my opinion very essential and is in the interest of both parties.”

I agree with the Learned Justices of the lower Court that in a criminal trial, all the evidence required for a just and fair determination of the case are very essential and effort to introduce such evidence must be encouraged even when parties have closed their respective cases and before the judgment. I also agree that where any of the parties to the case draws the attention of the Court to any witness whose evidence can help to resolve the matter one way or the other and the Court subsequently accepts and orders the calling of such witness, such discretion of the Court

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should not be regarded as an obstacle to justice. In a Scottish case of Todd v. Macdonald (1960) SC (J) 93, it was clearly stated that the power of recalling a witness is not limited to the purpose of clearing up ambiguities in the evidence that had already been given, but that the party recalling him might put to the witness, any completely new point which had inadvertently been omitted in his original evidence.

See Bevan v. M’ Mhon and Bevan 164 ER 912 at 913. In this country, we operate the accusatorial system as opposed to inquisitorial method of trying an accused person, in which a Judge rarely interferes with the conduct of cases by descending into arena of contest. The major feature of this system is the passive and inactive role of the judge in the presentation of cases in Courts. The judge under this system is at best an attentive listener to all that is said on both sides. He speaks mainly to deliver judgments. This passive role of the judge emphasizes the active role of Counsel for the prosecution and for the defence.

See David Uso v. C.O.P. (1972) 11 SC 37 at 46 – 47, Josiah v. The State (1985) 1 SC 406 at 443

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It is in view of the adversary system which we practice that a judge should refrain from calling or recalling witnesses for the parties before him. The application by the Learned Counsel for the Respondent to call a ballistician to tender a gun, which he had before the close of parties case drawn the Courts attention to, in my view was in order, and the grant of the application has not insulted the Law. The Learned trial judge acted in the overall interest of justice as the evidence of the ballistician is so essential to the just determination of the case. The lower Court was right when it upheld the ruling of the trial Court.

The sole issue formulated by the Appellant is resolved against him. Appeal is accordingly dismissed for lacking in merit. The ruling of the Lagos State High Court which was affirmed by the lower Court is further affirmed by me.

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SC.744/2013